CASPAR W. WEINBERGER, SECRETARY OF DEFENSE, ET AL, PETITIONERS V.
TEMISTOCLES RAMIREZ DE ARELLANO, ET AL.
No. 84-1398
In the Supreme Court of the United States
October Term, 1984
The Solicitor General, on behalf of the Secretary of Defense, the
Secretary of State, and the Chief of the United States Army Corps of
Engineers, petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the District of Columbia
Circuit in this case.
Petition For A Writ of Certiorari To The United States Court of
Appeals For The District of Columbia Circuit
PARTIES TO THE PROCEEDINGS
The petitioners are Caspar W. Weinberger, Secretary of Defense;
George P. Schultz, Secretary of State; and Lieutenant General E.R.
Heiberg III, Chief of the United States Army Corps of Engineers.
The respondents, as described in the complaint filed in the
district court (C.A. App. 6), are Temistocles Ramirez de Arellano, a
United States citizen who resides in Puerto Rico and Honduras; T.
Ramirez & Company, Inc., a Puerto Rican corporation that is wholly
owned by respondent Ramirez; Empacadora del Norte, S.A., a Puerto
Rican corporation that is wholly owned by respondent Ramirez and
respondent T. Ramirez & Company, Inc.; Inversiones Centroamericanas,
S.A., a holding company that is incorporated in Honduras and is wholly
owned by respondent Empacadora del Norte, S.A.; and three other
Honduran corporations that are wholly owned by respondent Inversiones
Centroamericanas, S.A.: Empacadora del Norte Honduras, S.A.;
Empacadora de Castilla, S.A. de C.V.; and Ganadera de Trujillo, S.A.
TABLE OF CONTENTS
Opinions below
Jurisdiction
Constitutional and statutory provisions involved
Statement
Reasons for granting the petition
Conclusion
Addendum
OPINIONS BELOW
The opinion of the en banc court of appeals (App., infra, 1a-167a)
is reported at 745 F.2d 1500. The prior opinion of the panel of the
court of appeals (App., infra, 168a-237a) is reported at 724 F.2d 143.
The opinion of the district court (App., infra, 238a-247a) is
reported at 568 F.Supp. 1236.
JURISDICTION
The judgment of the en banc court of appeals (App., infra,
248a-249a) was entered on October 5, 1984. By order dated December
27, 1984, the Chief Justice extended the time within which to file a
petition for a writ of certiorari to and including March 4, 1985. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Due Process Clause of the Fifth Amendment, relevant provisions
of Sections 503 and 541 of the Foreign Assistance Act of 1961, 22
U.S.C. 2311 and 2347, and relevant portions of the first paragraph of
Title III of the Foreign Assistance and Related Programs
Appropriations Act of 1985, are reproduced in an addendum to this
petition (Add., infra, 1a-3a). /1/
QUESTIONS PRESENTED
This suit for declaratory and injunctive relief was brought by
respondents against the Secretary of Defense, the Secretary of State,
and the Chief of the United States Army Corps of Engineers to
challenge the participation by United States military and civilian
personnel in training activities at a Regional Military Training
Center (RMTC) that was established on respondents' property in
Honduras pursuant to official decrees of the Congress and President of
Honduras.
The questions presented are:
1. Whether the suit is barred by the political question doctrine
because it interferes with military affairs abroad and the conduct of
foreign relations.
2. Whether the suit is barred by the act of state doctrine because
it calls into question the official Honduran decrees establishing the
RMTC as an undertaking of the Government of Honduras.
3. Whether the suit is barred by principles of equitable discretion
precluding a court from enjoining such a military training activity on
foreign soil.
4. Whether the complaint must be dismissed or summary judgment
granted for the government because petitioners' actions are fully
authorized by the Constitution and Acts of Congress.
STATEMENT
1. a. This suit for declaratory and injunctive relief was filed by
respondents in the United States District Court for the District of
Columbia on July 13, 1983 against the Secretary of Defense, the
Secretary of State, and the Chief of the Army Corps of Engineers.
Respondents challenge the activities of United States military and
civilian personnel in connection with a Regional Military Training
Center (RMTC) in northern Honduras. The RMTC is situated on a portion
of a 14,000-acre ranch that, according to the complaint, is owned by
three Honduran corporations that in turn are owned, through
intermediate corporations, by respondent Ramirez, a United States
citizen who resides in Puerto Rico and Honduras. App., infra, 6a;
C.A. App. 5-7.
By decree dated June 24, 1983, the National Congress of the
Republic of Honduras formally approved the establishment of the RMTC
in order to "permit the overall improvement of the Honduran Armed
Forces and the technical training of military elements, both national
as well as natives of friendly countries." At that time, the National
Congress "authorize(d) the admission of military instructors and
students, coming from friendly countries," to participate in the
training activities at the RMTC. App., infra, 255a. On November 4,
1983, the President of Honduras issued a decree declaring that the
RMTC is an activity "of the Armed Forces of Honduras" that performs
the obvious, very important, and direct function of providing national
security for the "State" (id. at 257a, 259a). The President therefore
decreed that the property for the RMTC should be expropriated under
the Law of Eminent Domain and the Land Reform Law and that
"(e)stablished legal procedures shall apply to the appraisal of the
property and to the payment of compensation to the owner(s), without
prejudice to any agreements or direct negotiations between the
Government of Honduras and/or the Armed Forces and the owner(s) of the
property" (id. at 258a-259a).
B. In the instant suit, respondents contended that the actions of
the Secretary of Defense, the Secretary of State, and the Chief of the
Corps of Engineers in connection with the RMTC (i) are "beyond (their)
express or implied authority under the laws and treaties of the United
States and the United States Constitution," and (ii) have deprived
respondents of the use and enjoyment of their property without prior
notice and hearing, in violation of the Due Process Clause of the
Fifth Amendment (C.A. App. 10-11). /2/ Respondents sought a
declaratory judgment that petitioners' conduct is unlawful and
injunctive relief preventing petitioners "from seizing, occupying, or
destroying (respondents') property, or depriving (respondents) of the
use and enjoyment thereof" (C.A. App. 12-13). Respondents did not
seek any monetary relief (App., infra, 239a).
The relationship between Honduras and the United States was
explained in district court in a sworn declaration by James H. Michel,
the Principal Deputy Assistant Secretary of State for Inter-American
Affairs (C.A. App. 47-52). Compare Regan v. Wald, No. 83-436 (June
28, 1984), slip op. 6 & n.11, 20. Mr. Michel stated that the
Government of Honduras has "close and friendly diplomatic relations
with the United States" and is "(t)hreatened by aggression from
Nicaragua, which is aided and supported by Cuba and the Soviet Union"
(C.A. App. 48). Honduras has participated in diplomatic efforts to
seek peaceful solutions, while maintaining military readiness to
defend its sovereignty and territorial integrity. In furtherance of
these policies, Honduras established the RMTC to train its troops and
those of friendly governments, principally El Salvador. Ibid.
Mr. Michel also explained that the United States "has assisted in
the establishment of the (RMTC) facility and is assisting in the
instruction of trainees" because "(t)he United States has a vital
foreign policy interest in the security of Honduras and El Salvador"
(C.A. App. 48). This assistance is granted pursuant to the Bilateral
Military Assistance Agreement, May 20, 1954, Honduras-United States, 5
U.S.T. 843 et seq., as well as the President's constitutional
authorities, the Foreign Assistance Acts of 1961 (22 U.S.C. 2301 et
seq.), and the Arms Export Control Act (22 U.S.C. 2751 et seq.). C.A.
App. 49. However, Mr. Michel stressed that "(a)s a Honduran
government facility, the RMTC is and from its inception has always
been under the command, control and administration of the Honduran
Armed Forces," and "(t)he Honduran Government controls access to and
acquisition of the land used for the RMTC, provides physical security,
and negotiates bilateral issues with other governments whose personnel
receive training at the facility" (ibid.). The United States
Government "provides technical assistance and services in design,
construction, and training" (ibid.).
Finally, Mr. Michel averred that an injunction would "introduce
friction into the bilateral relationship insofar as it entails a
determination by a U.S. court that another state was not acting in its
sovereign capacity, thus calling into question that sovereignty";
would "call into question the reliability and credibility of United
States Government commitments to other states"; and would "leave
doubt in the minds of both friends and adversaries that the United
States is prepared to act decisively in the pursuit of its foreign
policy goals" (C.A. App. 50-51).
c. Respondents sought to depose various diplomatic and military
officials of the United States to inquire into such subjects as "(t)he
extent to which the United States Government exercised control over
the formation, creation, * * * and operation of the training center,
the United States' activities at the training center, * * * and the
extent to which the United States has alternatives available to it
other than (respondents') site" (7/15/83 Tr. 22). The district court
denied the request (id. at 37). On August 24, 1983, the court
dismissed the complaint on the ground that it raised nonjusticiable
political questions (App., infra, 238a-247a).
2. A divided panel of the court of appeals affirmed the dismissal
of the complaint (App., infra, 168a-237a). Although the panel
rejected the district court's reliance on the political question
doctrine (id. at 171a-173a), the majority held that general principles
of equity bar this suit. It relied on a number of factors: the
challenged activity is a military operation (id. at 174a, 176a);
there would be difficulties in supervising compliance on foreign soil
(id. at 174a-176a); an injunction intended to protect respondents'
property rights under Honduran law would affect the activities of
Honduran troops and "accuse them of having violated their own law in
their own territory" (id. at 176a-179a); respondents, "four of which
are Honduran corporations and the rest of which have voluntarily
chosen to profit from the resources of Honduras," had not first
attempted to obtain relief in Honduras (id. at 179a-180a);
respondents' claims, although cast in constitutional terms, are
"entirely derivative" of their property rights under Honduran law (id.
at 180a); and alternative relief would be available in a suit for
money damages in the Claims Court if a taking by the United States has
occurred (id. at 180a-187a). Judge Wilkey dissented (id. at
196a-237a).
3. a. On respondents' petition for rehearing, the en banc court, in
a sharply divided 6-4 decision, reversed the dismissal of the suit and
remanded for proceedings on the merits, including discovery by
respondents into the circumstances of the United States' involvement
with the RMTC (App., infra, 1a-167a). The majority first held that
respondents' complaint stated claims for relief in its allegations
that petitioners' actions were beyond their express or implied
authority under the laws, treaties, and Constitution of the United
States and deprived respondents of their property without due process
of law (id. at 14a-17a). The majority next rejected the district
court's reliance on the political question doctrine in dismissing the
suit (id. at 17a-27a), principally because respondents did not
challenge the presence of United States military personnel in Honduras
generally or the furnishing of assistance to a RMTC, but instead
challenged the presence of military personnel and the RMTC only on the
particular land that is owned by the Honduran corporations controlled
by respondent Ramirez (id. at 19a-20a, 22a-24a).
The majority also rejected the panel's conclusion that principles
of equitable discretion bar the instant suit (App., infra, 39a-69a).
It suggested in the process that injunctive relief requiring United
States military personnel to withdraw from the premises might be
available, even if their presence is fully authorized by Act of
Congress and the Constitution, because, in the court's view, a
monetary remedy might be "inadequate" if respondents' land is uniquely
suited to ranching (id. at 54a-57a). Finally, the majority rejected
the contention that the suit is barred by the act of state doctrine,
in light of the resolution of the Congress of Honduras and the decree
by the President of Honduras that formally proclaimed the RMTC to be
an activity of Honduras and expropriated the land in question for that
purpose (App., infra, 69a-93a). The majority concluded that,
notwithstanding these decrees, it was necessary for the district court
to evaluate the extent of the activities of Honduran soldiers at the
RMTC in order to determine whether it is actually an undertaking of
the Government of Honduras (id. at 75a-76a, 81a, 82a, 84a 87a).
b. Judge Tamm dissented (App., infra, 98a-110a). He concluded that
injunctive relief would "necessarily result in an intolerable judicial
intrusion into the conduct of foreign affairs" (id. at 101a), because
it "would essentially dictate to the executive branch the proper situs
or scope of a Central American military training facility" (id. at
104a) and would "detrimentally affect() our relations with Honduras"
by "implicitly question(ing) Honduran sovereignty" (id. at 105a).
Judge Scalia filed a separate dissenting opinion, in which judges
Bork and Starr joined (App., infra, 111a-147a). He concluded that
injunctive relief is barred because petitioners' actions are within
the scope of the express statutory authority of the President to
furnish military assistance and training in a foreign country (id. at
120a-122a, citing 22 U.S.C. 2311(a) and 2347) and because respondents
may bring an action under the Tucker Act (28 U.S.C. 1491) for any
taking of property that may be attributable to the United States as a
result of these authorized activities (App., infra, 111a-124a). In
addition, Judge Scalia reiterated the panel's reasoning that a number
of equitable considerations bar injunctive or declaratory relief (id.
at 134a-147a), observing that the principles of nonjusticability and
separation of powers relied upon by Judge Tamm made it "clear beyond
all doubt" that an award of injunctive relief in this case would be an
abuse of discretion (id. at 138a-139a). Judge Starr, joined by Judge
Scalia, also filed a separate dissenting opinion in which he concluded
that the suit is barred by the act of state doctrine (id. at
148a-167a).
4. Following the entry of judgment by the en banc court on October
5, 1984 (App., infra, 248a-249a), Congress passed and the President
signed the Foreign Assistance and Related Programs Appropriations Act
for fiscal year 1985, /3/ which specifically addresses the status of
the RMTC and respondents' claim. In the first paragraph of Title III
of that Act, Congress appropriated $805,100,000 to the President for
military assistance in carrying out the Foreign Assistance Act of
1961. Section 127, 98 Stat. 1893. However, a proviso states that
none of these funds shall be used for operation and maintenance of a
RMTC in Honduras until the President provides the Senate and House
Appropriations Committees with three items: (1) a report that the
Government of Honduras has provided a permanent site for such a
Center, assured full responsibility for any competing claims to such
site, and provided written assurances to make the site available on a
long-term basis for the training by the armed forces of other friendly
countries in the region; /4/ (2) a detailed plan for construction of
a permanent center; and (3) "a determination that the Government of
Honduras recognizes the need to compensate as required by
international law the United States citizen (i.e., respondent Ramirez)
who claims injury from the establishment and operation of the existing
Center, and that it is taking appropriate steps to discharge its
obligations under international law" (98 Stat. 1894).
In addition, Congress directed the President to submit reports 60
and 120 days after passage of the Act informing Congress of any
progress in resolving respondent Ramirez's claim against Honduras.
Congress further directed the President to submit a report 180 days
after passage of the Act explaining the actions the President proposes
to take if Honduras has failed to resolve the claim, including actions
with regard to Honduras's continuing eligibility for preferential
trade benefits under the Caribbean Basin Initiative /5/ and its status
under other expropriation-related legislation (98 Stat. 1894). The
Conference Report makes clear, however, that Congress "support(s) the
concept of such a Center and believe(s) that the President should have
maximum flexibility to continue negotiating cost effective methods of
providing necessary military training to Central American armed
forces" (130 Cong. Rec. H11940 (daily ed. Oct. 10, 1984)).
We have been informed by the Departments of Defense and State that
because issues pertaining to the RMTC have not yet been resolved in
diplomatic discussions with Honduras -- and because the President
therefore has not yet made the determinations that are prerequisite
for the use of fiscal year 1985 funds for a permanent RMTC --
assistance to the existing facility is currently being furnished with
funds remaining from fiscal year 1984 appropriations for foreign
military assistance.
5. On November 8, 1984, the government filed a motion with the
court of appeals for a stay of the mandate -- which was then due to
issue on November 12, 1984 -- pending the filing and disposition of a
petition for rehearing discussing the effect on this case of the
provisions of the 1985 Appropriations Act that specifically address
the RMTC. The rehearing petition was timely filed on November 19,
1984. Nevertheless, on November 20, 1984, the court of appeals denied
the government's motion for stay of the mandate (App., infra,
252a-253a), and by order dated December 6, 1984, the court, without
explanation, directed the clerk not to file the government's rehearing
petition (App., infra, 250a-251a). However, on January 2, 1985, the
Chief Justice granted petitioners' application for a stay (No. A-477)
of all further proceedings in district court pending the timely filing
and disposition of a petition for a writ of certiorari.
6. a. On December 11, 1984, the Acting Secretary of State, on
behalf of the President, submitted the first of the reports to
Congress as required by the Appropriations Act proviso, discussed
above (see page 9, supra; App., infra, 263a-267a). In that report,
he noted that by letter dated December 14, 1983, in connection with
its designation as a beneficiary under the Caribbean Basin Initiative,
the Government of Honduras made a commitment to meet fully its treaty
and international law obligations concerning respondents' claim and
stated that, "'upon request of the claimant,'" it agrees to submit the
case to a national valuation proceeding and to conclude the proceeding
within three months of the initiation of the proceeding (id. at
264a-265a). However, the Acting Secretary reported that respondent
Ramirez "has not as yet requested that the outlined valuation process
be initiated" (id. at 265a). He continued (ibid.):
We believe the most appropriate next step is for Mr. Ramirez,
like any other claimant abroad, to pursue fully remedies
available under Honduran law, including the valuation process
offered by the Government of Honduras (in December 1983), that
will permit a full and fair hearing of all material issues.
There is no prejudice to the status of his claims by pursuing
local remedies, even should these eventually result in what he
and we consider to be a denial of justice. The rule of
exhaustion of remedies is a well-established part of
international law.
The Acting Secretary also informed Congress that "(t)he claims of
Mr. Ramirez continue to be under active discussion between the
Honduran and the U.S. (G)overnments" and that "the Honduran Government
has indicated a desire to relocate the RMTC to another site" (App.,
infra, 265a-266a). He stated that "(i)f the RMTC were to be
relocated, we believe it would be legally satisfactory for Honduras to
rescind its expropriation decree and restore the status quo ante, with
compensation for any legitimate claims of intervening damages to Mr.
Ramirez'(s) interests" (ibid.). /6/
b. On February 13, 1985, the Secretary of State submitted to
Congress the second of the reports required by the Appropriations Act
(App., infra, 268a-270a). He reported that on numerous occasions in
the intervening two months, State Department officials in Washington
and United States Embassy personnel in Honduras had reiterated to the
Government of Honduras the need for resolution of respondents' claim
and that "the Government of Honduras continued direct conversations
with representatives of Mr. Ramirez" (id. at 269a). The Secretary
further informed Congress that on February 6, 1985, the President of
Honduras directed the Attorney General of Honduras to initiate the
national valuation procedure described in the Honduran Government's
December 14, 1983 letter. The Secretary assured Congress that the
United States "will monitor closely this process" and that "the claims
of Mr. Ramirez will have high priority in our broader discussions with
the Government of Honduras" (id. at 269a-270a).
REASONS FOR GRANTING THE PETITION
The decision of the court of appeals sanctions an extraordinary and
unprecedented judicial intrusion into the conduct of the Nation's
military affairs and foreign relations. It provides for the district
court to consider the propriety of the presence of United States
military personnel on foreign soil, yet wholly ignores explicit
statutory authority for the President to lend assistance to military
training such as that conducted at the RMTC. It countenances an
inquiry by the courts of the United States into a bona fides of the
official declarations by the Congress and President of Honduras that
the RMTC is an undertaking of the armed forces of Honduras and that
compensation will be made by the Government of Honduras in accordance
with international law. And it disregards the express views of the
Legislative and Executive Branches of the United States Government
that the RMTC is a facility of the Government of Honduras, that
payment of compensation to respondents is the responsibility of
Honduras, and that respondents' claim against Honduras should be
pursued through local remedies and, if necessary, through diplomatic
channels. To compound its cavalier disregard for the views of the
coordinate Branches on these sensitive matters, the court of appeals
inexplicably refused even to entertain the petition for rehearing
filed by the Executive to explain the impact on this case of the
intervening Act of Congress that specifically addresses the RMTC and
establishes a statutory procedure for resolving respondents' claim.
/7/
The decision of the court of appeals cannot be squared with this
Court's holdings regarding the doctrines of political question and act
of state and the limitations on the granting of equitable relief. As
Congress made clear in the fiscal year 1985 Appropriations Act, the
manner in which the Government of the United States is to be involved
in the resolution of respondents' claim is through diplomatic
discussions with Honduras and, if appropriate, through the termination
of economic benefits. Intrusion by the courts into that process could
have serious adverse consequences for the Nation's foreign relations
and security. Review by this Court therefore is warranted.
1. Respondents' challenge to constitutional and statutory authority
with respect to the RMTC is wholly without merit. The complaint
should have been dismissed or summary judgment granted in favor of
petitioners on this ground alone.
a. It cannot seriously be maintained that the Constitution prevents
the Government of the United States from lending assistance to
military training activities in another country. The right to form
alliances and to enter into such military agreements is an integral
aspect of the sovereignty that the United States possesses in a
measure equal to that of all nations, see, e.g., United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 315-318 (1936), and the
ability to do so often is critical to the national security and to the
effective conduct of foreign relations. Consistent with these
principles, the United States, on May 20, 1954, entered into the
Bilateral Military Assistance Agreement with the Government of
Honduras "for the common defense and for the maintenance of the peace
and security of the Western Hemisphere." 5 U.S.T. 844.
Nor does the Constitution prohibit the furnishing of military
assistance at facilities constructed on property in the recipient
country that previously was owned or controlled by a corporation that
in turn is owned by a United States citizen. The United States
Government itself may acquire private property within the United
States, whether belonging to its own citizens or to aliens, for any
public use (Hawaii Housing Authority v. Midkiff, No. 83-141 (May 30,
1984), slip op. 9-12), including the establishment of a military
installation. See U.S. Const. Art. I, Section 8, Cl. 17. Article I
of the Treaty of Friendship, Commerce and Consular Rights, Dec. 7,
1927, United States-Honduras, 45 Stat. 2618-2619, similarly recognizes
the right of each party to take property belonging to a national of
the other party, subject only to the payment of just compensation.
Moreover, just as the Fifth Amendment permits the government to
acquire property first, with the payment of compensation to be
determined in subsequent proceedings (see, e.g., Ruckelshaus v.
Monsanto Co., No. 83-196 (June 26, 1984), slip op. 28), so too the
Treaty does not prohibit the Government of Honduras from taking
property of a United States citizen prior to the payment of
compensation. It accordingly is fully consistent with the
Constitution for the Government of the United States to lend
assistance to military training activities at the RMTC.
b. Respondents also have alleged that the actions at issue "are
beyond (petitioners') express or implied authority under the laws and
treaties of the United States" (C.A. App. 11), However, this Court has
held that in making such a claim, "'it is necessary that the plaintiff
set out in his complaint the statutory limitation on which he
relies.'" Malone v. Bowdoin, 369 U.S. 643, 648 & n.9 (1962), quoting
Larson v. Domestic & Foreign Corp., 337 U.S. 682, 690 (1949).
Respondents have failed to identify any such limitation. This defect
alone required dismissal of their suit. In any event, respondents,
like the majority of the court of appeals, have wholly ignored
authorization for petitioners' actions that is so clear as to render
this suit frivolous.
Of course, at the core of the case are the President's
constitutional powers as Commander-in-Chief and the "sole organ" of
the Nation in foreign affairs. U.S. Const. Art. II, Section 2;
United States v. Curtiss-Wright Export Corp., 299 U.S. at 319. But in
addition, there is explicit statutory authorization for the President
to assist in the training activities of the RMTC. As Judge Scalia
pointed out (App., infra, 121a-122a n.7), the President is expressly
authorized by the Foreign Assistance Act of 1961 to furnish "military
education and training to military and related civilian personnel of
foreign countries * * * through * * * attendance at military
educational and training facilities * * * abroad" (22 U.S.C. 2347(1))
and "to furnish military assistance, on such terms and conditions as
he may determine, to any friendly country * * * by * * * assigning or
detailing members of the Armed Forces of the United States and other
personnel of the Department of Defense to perform duties of a
noncombatant nature" (22 U.S.C. 2311(a)(2)).
The majority below seemed to believe that it is necessary to find a
more specific congressional authorization for military assistance if
it is to be furnished on land owned by a United States citizen. See
App., infra, 46a-48a & n.95. That obviously is not so. Congressional
authorizations typically are written in broad terms to afford the
Executive necessary flexibility, without specifying the precise manner
or situs of the activity. This approach is all the more appropriate
with regard to the President's conduct of foreign relations and
military affairs, and this Court in fact has acknowledged "the
unwisdom of requiring Congress in this field of governmental power to
lay down narrowly definite standards by which the President is to be
governed." United States v. Curtiss-Wright Export Corp., 299 U.S. at
321-322. See Haig v. Agee, 453 U.S. 280, 291-292 (1981). In the
present context, for example, where military training is to be
furnished to military personnel of a foreign nation within its
territory, the location necessarily depends upon a designation of an
appropriate site by the government of that country, as occurred in
this case.
But even assuming that more specific authorization were required,
it plainly exists here. Congress has been fully apprised of the
President's use of foreign military assistance funds for the RMTC and
has approved that action. In the State Department's official
explanation of the President's proposals to implement the
recommendations of the National Bipartisan Commission on Central
America (the Kissinger Commission), the Department reported that
"(t)he RMTC was established in Honduras in 1983 on a temporary,
austere basis" and "has proven to be extremely valuable as a low-cost
way to provide large-scale training to Honduran and Salvadoran troops
in a realistic environment" (U.S. Dep't of State, Briefing Book:
Central America Democracy, Peace and Development Initiative 8 (Feb.
1984). The State Department further stated that the President was
requesting a supplemental appropriation in the amount of $25 million
for fiscal year 1984 and an appropriation of $20 million for fiscal
year 1985 for activities associated with a more permanent training
center (id. at 8-9). /8/
Thereafter, the background of the RMTC and the manner in which the
newly requested funds would be used were explained in detail by the
Department of Defense in response to questions from the Chairman of
the responsible House Appropriations Subcommittee. /9/ Although the
House of Representatives subsequently earmarked only $3.1 million for
the RMTC in its version of the supplemental appropriation bill (see
H.R. Rep. 98-916, 98th Cong., 2d Sess. 92 (1984)), the Second
Supplemental Appropriation Act for fiscal year 1984 as finally enacted
and signed into law on August 22, 1984 appropriated a lump sum of $140
million for foreign military assistance, without restricting the use
of funds for the RMTC to a particular amount. Pub. L. No. 98-396, 98
Stat. 1405.
Moreover, as we have explained (see pages 8-9, supra), Congress
subsequently enacted the Foreign Assistance Appropriations Act for
fiscal year 1985, which makes available more than $800 million to the
President for foreign military assistance. That Act does not allocate
a specific amount for the RMTC, but Congress had been made fully aware
of the President's plans to use $20 million of those funds for the
RMTC. See page 16, supra. Congress's approval of the use of funds
for that purpose is in any event demonstrated by the proviso that
specifically refers to the RMTC. Although the proviso prohibits the
use of new funds for the RMTC until certain issues have been resolved,
Congress did not question the authority of the President to lend
assistance to what the proviso refers to as the "existing Center." To
the contrary, the Conference Report expressed support for the "concept
of such a Center" (130 Cong. Rec. H11940 (daily ed. Oct. 10, 1984)),
and Congress appropriated substantial additional funds for the RMTC,
either at its existing site or a new location, subject only to the
specified conditions.
In sum, subject to limitations on the expenditure of newly
appropriated funds, it is clear beyond question that Congress, with
full knowledge of the interest of a United States citizen in the land,
has approved the President's actions in lending assistance to the
RMTC. For this reason, contrary to the view of the court of appeals
(App., infra, 14a-16a), this case presents no issue of separation of
powers such as that involved in Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952), where the President's actions were demonstrably
inconsistent with the intent of Congress (343 U.S. at 586; id. at 609
(Frankfurter, J., concurring)). Compare Dames & Moore v. Regan, 453
U.S. 654, 674 (1981). As a result, even assuming there were no other
obstacles to this suit (but see pages 19-29, infra), there could be no
basis whatever for the courts below to inquire into the relative
responsibilities of Honduras and the United States in establishing and
operating the RMTC. /10/
2. There are, however, far deeper and more disturbing flaws in the
court of appeals' decision, because this suit is barred by the
doctrines of political question and act of state, or, at the very
least, by compelling prudential considerations that preclude equitable
relief.
a. A number of the factors this Court has identified under the
political question doctrine are directly applicable to this case. The
Court has made clear that "(c)ertainly it is not the function of the
Judiciary to entertain private litigation -- even by a citizen --
which challenges the legality, the wisdom, or the propriety of the
Commander-in-Chief in sending our armed forces abroad or to any
particular region." Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).
The court of appeals sought to avoid that principle here on the ground
that respondents do not challenge the United States' military presence
in Honduras or object to United States aid to an RMTC in Honduras, but
instead challenge only the presence of military personnel and the RMTC
on their particular tract of land. App., infra, 19a-20a, 22a-24a.
This distinction finds no basis in the political question doctrine.
The President's discretionary determination to furnish military
personnel and other assistance to Honduras in connection with an RMTC,
which the court of appeals appears to concede is nonjusticiable,
necessarily subsumes the right of the President or his subordinates to
make subsidiary judgments regarding the type and location of any
activity executing that policy judgment. Cf. United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines), No. 82-1349
(June 19, 1984), slip op. 12-13; Dalehite v. United States, 346 U.S.
15, 35-36 (1953).
Thus, assuming arguendo that officials of the United States played
a role in selecting the site for the present RMTC, it is not for the
courts below to inquire, as respondents have sought to do through
discovery, into "the extent to which the United States had
alternatives available to it other than (respondents') site (see
7/15/83 Tr. 22). There is, in any event, "a lack of judicially
discoverable and manageable standards for resolving" such a question
(Baker v. Carr, 369 U.S. 186, 217 (1962)), especially in light of the
military, political and other considerations that must inform it and
the potential for inquiry into confidential diplomatic and other
information. In this as in other aspects of the United States' role
in Central America, there is an "impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government" and an "unusual need
for unquestioning adherence to a political decision already made"
(Baker v. Carr, 369 U.S. at 217). Moreover, because the decree by the
President of Honduras formally designates respondents' property as the
site for the RMTC, judicial inquiry into the suitability of that site
also would express a lack of respect due an independent sovereign with
regard to the best use of land within its own territory.
Nor is this case remotely like Youngstown Sheet & Tube Co. v.
Sawyer, supra, upon which the court of appeals relied in finding this
case to be justiciable (see App., infra, 20a, 23a-24a). In
Youngstown, the President had seized the Nation's steel industry, "an
action of profound and demonstrable domestic impact" (Goldwater v.
Carter, 444 U.S. 996, 1004-1005 (1979) (Rehnquist, M., concurring));
here, by contrast, the Executive action "is 'entirely external to the
United States, and (falls) within the category of foreign affairs'"
(id. at 1005), quoting United States v. Curtiss-Wright Export Corp.,
299 U.S. at 315). Furthermore, in Youngstown, the President's action
was only indirectly related to his explicit constitutional authority
as Commander-in-Chief (343 U.S. at 587), while here the President's
assignment of military personnel to conduct military training in a
foreign country falls squarely within that power.
Finally, the court of appeals' decision invites "multifarious
pronouncements by various departments on one question" (Baker v. Carr,
369 U.S. at 217). The text and background of the Appropriations Act
for fiscal year 1985 express Congress's intent that the resolution of
respondents' claim is the responsibility of the Government of
Honduras, /11/ that the President will conduct negotiations with
Honduras regarding the RMTC on that basis (compare Dames & Moore v.
Regan, 453 U.S. at 679-688), and that the President will determine
what actions should be taken under the Caribbean Basin Initiative and
other expropriation-related legislation if Honduras fails to resolve
respondents' claim within 180 days. The further judicial proceedings
contemplated by the court of appeals would undermine the Nation's
ability to speak with one voice in these negotiations -- by casting
doubt on the legality of the actions of the United States Government
with respect to the existing center, by impugning the sovereign acts
of the Honduran Government in establishing the RMTC as a facility of
its own Armed Forces, and by suggesting that Honduras is not
responsible for paying compensation to respondents for legitimate
claims (see C.A. App. 51).
b. The court of appeals also clearly erred in declining to dismiss
this suit based on the act of state doctrine. Under that doctrine:
Every sovereign State is bound to respect the independence of
every other sovereign State, and the courts of one country will
not sit in judgment on the acts of the government of another
done within its own terjitory.
Underhill v. Hernandez, 168 U.S. 250, 252 (1897), quoted in Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964). See also
Oetjen v. Central Leather Co., 246 U.S. 297 (1918); Ricaud v.
American Metal Co., 246 U.S. 304, 310 (1918). The doctrine requires
that an American court recognize as valid an action by a foreign
sovereign with regard to property within its territory. Alfred
Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 686, 691 nn. 7-8
(1976).
In this case, the Congress of Honduras formally approved the
establishment of the RMTC and invited foreign personnel to train and
be trained there. Because respondents concededly do not and cannot
challenge the validity of this official decree (App., infra, 73a, 90a)
-- and therefore do not and cannot challenge the authority of the
Honduran Government to invite United States personnel to participate
in activities at the RMTC -- it follows that, for purposes of this
case, any United States personnel engaged in training activities at
the RMTC must be regarded from respondents' perspective as lawfully
present. /12/ Moreover, the President of Honduras issued a decree
declaring that the RMTC is "an activity of the Armed Forces of
Honduras" and that the land, which was specifically identified, shall
be expropriated for the RMTC. /13/
The thrust of respondents' argument seems to be that although the
official decrees are valid on their face, the Congress and President
of Honduras did not mean what they said -- that although the
Government of Honduras has officially declared the RMTC within its
borders to be "an activity of the Armed Forces of Honduras," the RMTC
actually should be considered an activity of the United States. In
other words, respondents accuse the Government of Honduras not of
illegality, but of mendacity, and they ask a court of the United
States to adjudicate that question. And to establish their case,
respondents have argued (see page 5, supra), and the court of appeals
agreed (App., infra, 75a, 86a-87a, 97a), that they should be permitted
to engage in discovery to determine the respective roles of the United
States and Honduras in creating and operating the RMTC, the number of
Honduran troops there, and the extent of their occupation of the
ranch. The act of state doctrine does not tolerate such impugning of
the acts of an independent nation.
As Judge Starr stated in his dissenting opinion below (App., infra,
162a-163a):
Assuming that the majority does not wish to suggest that the
United States simply invaded Honduras, its invitation to the
parties to plumb the timing of and relative responsibilities for
the establishment of the RMTC is a flagrant affront to the
sovereignty of Honduras. Attempts by the parties to find
"facts" with respect to these "issues" would in effect, question
Honduran autonomy and raise the specter of a United States court
declaring the government of an allied nation so subject to U.S.
"manipulation" as to be incapable of independent sovereign acts
worthy of deference under the act of state doctrine.
That result would be especially intolerable in this case, because the
Congress and President of the United States agree with the Congress
and President of Honduras that the RMTC is an activity of the
Government of Honduras. See Sumitomo Shoji America, Inc. v.
Avagliano, 457 U.S. 176, 183-185 (1982).
Against this backgound, the court of appeals' suggestion (App.,
infra, 90a-92a) that the Executive cannot invoke the act of state
doctrine in this case is both patently wrong and fraught with danger.
The court acknowledged that "(s)eparation of powers concerns are the
underpinnings of the act of state doctrine" and that "the defense bars
adjudication when it appears that relief 'would interfere with
delicate foreign relations conducted by the political branches'" (id.
at 70a-71a (footnote omitted), quoting First National City Bank v.
Banco Nacional de Cuba, 406 U.S. 759, 775-776 (1972) (Powell, J.,
concurring)). The credibility and effectiveness of the Executive in
this Nation's diplomatic relations would be seriously undermined if
the courts of the United States could ignore the Executive's
insistence that the acts of state of the sovereign nations with which
it deals must be respected.
c. In any event, as Judge Scalia explained (App., infra, 174a-187a,
137a-147a), a number of factors informing the exercise of a court's
equitable discretion require dismissal of this suit. This Court has
stressed that "courts of equity should pay particular regard for the
public consequences in employing the extraordinary remedy of
injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
Similar considerations apply to the availability of declaratory
relief. See Samuels v. Mackell, 401 U.S. 66, 69-74 (1971). In this
case, the principles of separation of powers, international comity,
and nonjusticiability that underlie the doctrines of political
question and act of state furnish compelling reasons why the courts
below cannot properly grant equitable relief.
Such relief would interfere with the activities of United States
military personnel assisting a friendly nation, thereby directly
inpinging upon the President's Commander-in-Chief and foreign affairs
responsibilities, and would undermine the ability of the United States
to meet its commitment to support the peace and security of this
critical region of the world. Indeed, the mere pendency of judicial
proceedings calling into question the legality of petitioners' actions
on behalf of the President threatens to damage the credibility of the
United States in these matters and to interfere with sensitive
diplomatic discussions regarding relations between the two nations,
Honduras's role in Central America, the future of the RMTC, and even
the resolution of respondents' own claims. Furthermore, because the
Government of Honduras has formally invited United States military
personnel to participate in training activities at the RMTC,
proceedings in district court challenging the right of United States
military personnel to be on respondents' land necessarily would call
the validity of that invitation into question and thus "impugn foreign
law" and the legality of the presence of Honduras's own troops there.
See Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952). It therefore
would be appropriate for the Court to order dismissal of the case on
equitable grounds, informed by these and other considerations, without
reaching the question whether the political question and act of state
doctrines, standing alone, bar this suit. See App., infra, 136a-139a
& n.13 (Scalia, J., dissenting). /14/
Dismissal on equitable grounds also would be consistent with the
long-established rule that courts generally will not enjoin a trespass
on land in another jurisdiction. See Ellenwood v. Marietta Chair Co.,
158 U.S. 105, 107 (1895); Restatement (Second) of Conflicts of Laws
Section 87 comment d 1971). Where, as here, the land at issue is
situation in a foreign country, this rule recognizes that "a nation's
control over the land within its borders is the most sovereign of its
functions, with which no other nation should interfere," and that it
"is difficult to monitor compliance with such decrees in far-off
lands" (App., infra, 140a-141a (Scalia, J., idssenting)). The rule
has particular force in this case, because respondent Ramirez has
chosen to engage in business in Honduras through corporations that are
organized under and fully subject to the laws of Honduras, and the
property in question is owned by these Honduran corporations. For
this reason, respondents should seek relief in Honduras, at least in
the first instance. Yet respondents have declined to request
initiation of the valuation proceedings that Honduras has made
available. Finally, although in our view there has been no taking of
respondents' property that could properly be attributed to the United
States, if respondents believe otherwise they could bring an action
under the Tucker Act for just compensation, since petitioners' actions
with respect to the RMTC have been fully authorized. Compare Dames &
Moore v. Regan, 453 U.S. at 688-689. /15/
In any event, whatever might have been the case before, Congress's
enactment of the Appropriations Act for fiscal year 1985 has removed
any remaining doubt that the courts below cannot proceed with this
suit. As we have explained (see pages 17-18, supra), that Act
entirely eliminates any basis for respondents' contention that
petitioners' actions with regard to the RMTC are unauthorized. In
addition, by imposing the specified conditions on the expenditure only
of newly appropriated funds for the RMTC, Congress already has
afforded as much of the relief that respondents seek in this case
(i.e., withdrawal of United States personnel and assistance from their
land) as Congress determined was appropriate. It is not for the
courts below to strike a different balance by barring all assistance
to the RMTC at its present site. Nor is there any indication that the
expenditure of remaining fiscal year 1984 funds to maintain the RMTC
in a caretaker status pending the resolution of broader issues will
have any significant adverse consequences for respondents.
Moreover, if it is determined in the on-going diplomatic
discussions that the RMTC should be moved to a new permanent location
or that the United States' assistance to the RMTC should be
terminated, the resulting withdrawal of United States personnel will
afford respondents all of the relief they seek in this suit. By the
same token, there can be no substantial infusion of new funds for the
RMTC, either on respondents' land or elsewhere, unless the President
determines that Honduras recognizes the need to compensate respondent
Ramirez as required by international law and is taking appropriate
steps to discharge that obligation. Congress has further required the
President to consider taking action under expropriation-related
legislation in order to apply pressure to the Government of Honduras
to resolve respondents' claim. Congress thus has prescribed the
measures it deems appropriate to obtain redress from Honduras for the
injury respondents allege in this suit and has made clear that any
participation by the United States Government should be through
diplomatic channels. In short, the Legislative and Executive Branches
have gone to extraordinary lengths to secure a resolution of this
matter. There is no basis for participation in that process by the
Judicial Branch.
3. The foregoing discussion of why this suit should be dismissed
also sufficiently demonstrates why review by this Court is warranted.
The court of appeals' decision directs the district court to inquire
further into matters pertaining to the RMTC at the very time when the
Executive -- in conformity with the express intent of Congress -- is
engaged in sensitive diplomatic negotiations with the Government of
Honduras on all matters pertaining to the present and future operation
of the RMTC, including resolution of respondents' claim, as well as
other issues in the bilateral relationship between the two Nations and
the peace and security of Central America generally. The initiation
of discovery by respondents and further proceedings in district court
could seriously disrupt that process and undermine the credibility of
the United States' commitment to an undertaking in Central America
that both Congress and the President have deemed essential to our
national security and foreign relations. See pages 3-5, 9, supra.
Compare Regan v. Wald, No. 83-436 (June 28, 1984), slip op. 6 & n.11,
19-20. Moreover, the court of appeals' inexplicable refusal even to
entertain the Government's rehearing petition prevented any
consideration below of the dispositive effect on this case of the
Appropriations Act for fiscal year 1985. That fundamental defect
should not be left uncorrected.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
REX E. LEE
Solicitor General
RICHARD K. WILLARD
Acting Assistant Attorney General
KENNETH S. GELLER
Deputy Solicitor General
EDWIN S. KNEEDLER
Assistant to the Solicitor General
ROBERT E. KOPP
JOHN M. ROGERS
Attorneys
MARCH 1985
/1/ The opinions below and other relevant materials are bound in a
separate volume.
/2/ Respondents also alleged that these actions constituted a
seizure of alien property by the United States in violation of the Law
of Nations (C.A. App. 12; see 28 U.S.C. 1350). The panel found no
cause of action under the Alien Tort Statute (App., infra, 189a), but
the en banc court did not address that issue (id. at 17a n.32).
/3/ The Foreign Assistance Appropriations Act was enacted as
Section 127 of the Continuing Appropriations, 1985 -- Comprehensive
Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1883 et seq.
/4/ The background of Congress's concerns is explained in the
Conference Report, which notes the continuing border disputes between
El Salvador and Honduras, recent decisions by the Honduran high
command refusing to allow El Salvadoran training at the existing RMTC,
and proposals by certain countries for eliminating military training
schools in Central America. 130 Cong. Rec. H11940 (daily ed. Oct. 10,
1984).
/5/ The Caribbean Basin Economic Recovery Act was enacted as Title
II of Pub. L. No. 98-67, 97 Stat. 384 et seq. Section 212(b) of that
Act provides that the President shall not designate a country as a
beneficiary country under the Act if it "has nationalized,
expropriated or otherwise seized ownership or control of property
owned by a United States citizen or by a corporation * * * which is 50
per centum or more beneficially owned by United States citizens,"
unless the President determines that prompt, adequate and effective
compensation has been or is being made or the country is otherwise
taking steps to discharge its obligations under international law. 97
Stat. 385-386. However, these restrictions do not prevent the
President from designating the country for beneficiary status if he
determines that such designation "will be in the national economic or
security interest of the United States" and reports to Congress his
reasons for that determination. Id. at 386.
/6/ The Secretary of Defense made a similar report to the Senate
and House of Representatives on December 8, 1984, pursuant to a
reporting provision in the Conference Report on the Department of
Defense Authorization Act for fiscal year 1985 (App., infra,
260a-262a). See H.R. Conf. Rep. 98-1080, 98th Cong., 2d Sess. 285-286
(1984).
/7/ The court of appeals failed to offer an explanation for its
order directing the clerk not to file the government's rehearing
petition. Although respondents filed an opposition to the
government's motion for a stay of the mandate pending disposition of
the rehearing petition, they did not suggest that the court could not
entertain the rehearing petition.
/8/ We have been informed by the Department of Defense that this
document was distributed to all Members of Congress in connection with
the President's proposals. We have lodged a copy of the document with
the Clerk of this Court.
/9/ See Transcript of House Appropriations Committee, Foreign
Operations Subcommittee (Mar. 8, 1984). The Defense Department stated
that foreign military assistance funds previously made available for
Honduras and El Salvador under the Arms Export Control Act and the
Foreign Assistance Act were used to assist in establishing the RMTC,
that "(t)he Administration consulted with the Senate Foreign Relations
and House Foreign Affairs Committees prior to the establishment of the
RMTC," and that "Congress was provided the text of the Terms of
Reference for the RMTC following their adoption by the U.S. and
Honduras on June 16, 1983" (id. at 1). We have lodged a copy of the
pertinent portions of this transcript with the Clerk of this Court.
/10/ Respondents' alternative claim that the Due Process Clause was
violated because they were deprived of the use of their property
without notice and an opportunity for a prior hearing (App., infra,
16a-17a) is equally insubstantial. Respondent's land in Honduras was
formally seized by the Government of Honduras. The Due Process Clause
of the United States Constitution does not apply to such action by a
foreign sovereign within its own territory. In any event, the
official decrees of the Congress and President of Honduras notified
respondents of the relevant circumstances, and the court of appeals
did not suggest what issues respondents would be entitled to litigate
in a "hearing" on the question of the use of land in a foreign country
for military training. See Logan v. Zimmerman Brush Co., 455 U.S.
422, 433 (1982); Bi-Metallic Investment Co. v. Colorado, 239 U.S. 441
(1915).
We note as well that respondents do not (and, under the act of
state doctrine, cannot) challenge the validity of the occupation of
the land by the Honduran Armed Forces or the assertion of control over
the land by the Government of Honduras. Accordingly -- even assuming
that the Due Process Clause might apply in some circumstances to
actions of United States' military personnel on foreign soil --
because the Government of Honduras had the unquestioned right in this
case to take possession of the land, respondents could have no right
to notice and an opportunity for a hearing in connection with the
Honduran Government's invitation to United States' personnel to enter
the land as well.
/11/ The House of Representatives passed a provision in the
Department of Defense authorization bill for fiscal year 1985 that
would have provided for proceedings before the Foreign Claims
Settlement Commission to determine the validity of respondent
Ramirez's claim and for the United States to pay the uncompensated
amount of any losses. See 130 Cong. Rec. H4743-H4745 (daily ed. May
23, 1984). However, this provision was specifically deleted by the
Conference Committee, which concluded that the claim instead "should
be resolved through negotiation or other appropriate means agreed upon
by the claimant and the Government of Honduras" and that "(t)he
Secretary of State should continue to lend all appropriate assistance
to settlement of such claims by the Government of Honduras or by a
third party procedure" (H.R. Conf. Rep. 98-1080, supra, at 285
(emphasis added)).
/12/ The court of appeals sought to avoid this conclusion by noting
that the resolution of the Congress of Honduras does not specifically
mention the particular site of the RMTC or respondents' property
(App., infra, 72a-73a). But the resolution states that the Republic
of Honduras "did establish" a RMTC "located in the jurisdiction of the
Municipality of Trujillo, Department of Colon" (App., infra, 255a).
This obviously refers to the RMTC on respondents' land. The act of
state doctrine is not rendered inapplicable merely because the
Honduran Congress's resolution did not describe the site by metes and
bounds or specifically identify the current owner. See note 13,
infra.
/13/ The court of appeals attempted to impeach the force of this
Presidential decree by suggesting that the decree does not constitute
a completed expropriation under Honduran law and does not assert that
title to the relevant portion of the property is in the Government of
Honduras (App., infra, 73a-74a). The court noted in this regard that
Honduras has not yet paid compensation and that Honduras "reportedly"
is reluctant to take the final steps of expropriation because factions
of the Honduran military are skeptical about the value of the RMTC
(id. at 74a). The court of appeals missed the point. It is
irrelevant for present purposes whether a completed expropriation
within the meaning of the domestic law of Honduras has yet occurred
and whether Honduras may ultimately abandon the RMTC endeavor, either
on respondents' land or generally. The Presidential decree
implementing the congressional resolution indisputably asserted
control over the designated land for the time being. That is
sufficient for purposes of the act of state doctrine.
/14/ This Court has stated that justiciability concerns, including
the separation of powers, "shade into those determining whether the
complaint states a sound basis for equitable relief." See O'Shea v.
Littleton, 414 U.S. 488, 499 (9174); Allen v. Wright, No. 81-757
(July 3, 1984), slip op. 12-14, 22-23. We note as well that any
relief granted against petitioners would not necessarily redress
respondents' alleged injuries, because Honduran troops and other
personnel might remain. See Allen v. Wright, slip op. 21; Simon v.
Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976).
/15/ There is no merit whatever to the remarkable and unprecedented
assertion by the majority below (App., infra, 53a-57a) that injunctive
relief against the taking of property might be available even if the
Executive's actions are fully authorized by Act of Congress and the
Constitution, on the ground that monetary compensation might be an
inadequate remedy if respondents' land is uniquely suited to ranching.
Even assuming that the RMTC is a project of the United States
Government, this Court's decisions refute the notion that the United
States could be prohibited from taking private property for a public
purpose -- much less a purpose relating to military or foreign affairs
-- simply because it has a special value to the owner. See, e.g.,
Hawaii Housing Authority v. Midkiff, No. 83-141 (May 30, 1984), slip
op. 9-12; United States v. 50 Acres of Land, No. 83-1170 (Dec. 4,
1984), slip op. 11.
ADDENDUM